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Section 377 partially struck down: Supreme Court decriminalises consensual sex between same sex adults

Date : 06/09/2018

A five-judge bench of the Supreme Court, on 6 September, unanimously read down the British-era law which criminalised consensual homosexual sex in India. The Supreme Court overruled the Suresh Kaushik verdict of 2016, which had reversed the Delhi High Court ruling decriminalising sex between consenting adults in same sex relations

The Bench, led by Chief Justice of India (CJI) Dipak Misra and comprising Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra gave four separate but concurring judgment.

What the CJI Dipak Mishra said:
– Societal morality cannot trump Constitutional morality. Section 377 is indefensible, irrational and manifestly arbitary.
– Sexual orientation is one of the many natural phenomenon. Any discrimination on basis of sexual orientation amounts to violation of fundamental rights.

What Justice Rohinton Nariman said:
– Members of the LGBT community are entitled to be treated as equals without any stigma.

What Justice Chandrachud said:
– There is a split between values on which Section 377 is based and the values of the Constitution.

What Justice Indu Malhotra said:
– History owes an apology to the members of the community for the delay in ensuring their rights.

What Justice Fali Nariman said:
– The recently passed Mental Healthcare Act has recognised that homosexuality is not a mental disorder and ordered the Central government to take campaign to reduce stigma surrounding sexual minorities.

Read the full judgment attached below.

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